Exxon Corp. v. Board of Standards and Appeals of City of New York

• Decision Date: 28 May 1987
• Citation: 128 A.D.2d 289,515 N.Y.S.2d 768
• Parties: In the Matter of the Application of EXXON CORPORATION, Petitioner-Respondent, For a judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. The BOARD OF STANDARDS AND APPEALS OF the CITY OF NEW YORK, and Sylvia Deutsch, Vito J. Foscella, Harry M. Carroll, Stanley M. Wolf, Miriam L. Bockman and Raymond J. Irrera, as members of said Board of Standards and Appeals, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 768

515 N.Y.S.2d 768

128 A.D.2d 289

In the Matter of the Application of EXXON CORPORATION Petitioner-Respondent For a judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. The BOARD OF STANDARDS AND APPEALS OF the CITY OF NEW YORK and Sylvia Deutsch, Vito J. Foscella, Harry M. Carroll Stanley M. Wolf, Miriam L. Bockman and Raymond J. Irrera, as members of said Board of Standards and Appeals, Respondents-Appellants.

Supreme Court, Appellate Division, First Department.

May 28, 1987.

Margaret G. King, New York City, of counsel (June A. Witterschein, with her on the brief; Peter L. Zimroth), for respondents-appellants.

George A. Burrell, New York City, of counsel (Robert L. Haig and Scott I. Batterman, with him on brief; Kelley, Drye & Warren) for petitioner-respondent.

Before SULLIVAN, J.P., and ASCH, MILONAS, KASSAL and ELLERIN, JJ.

SULLIVAN, Justice.

This appeal presents the issue of whether the Zoning Resolution of the City of New York prohibits the operation of a combination convenience store/gasoline station. We are persuaded that it does not, and affirm the remand of the matter to the Board of Standards and Appeals for a consideration of the relevant factors in determining whether the proposed convenience store satisfies the Zoning Resolution definition of an accessory use.

Exxon is the lessee under a long-term lease of premises located on Bell Boulevard in Queens. The property, a corner lot, is currently utilized, pursuant to a "variation" granted by the Board of Standards and Appeals on April 3, 1956, as a gasoline service station, with a lubritorium, an auto repair facility, as well as facilities for auto washing, an office, and the sale and storage of auto accessories. All four corners of the intersection are zoned C2-2, which allows commercial use by service establishments. ¹ The surrounding area is residentially zoned.

In 1985, the owner of the property submitted an application to the Department of Buildings to construct a new building in order to convert the use of the premises to a 24-hour self-service gasoline station, without repair facilities and with a small retail, or convenience store. A retail store falls within a Use Group 6 under the New York City Zoning Resolution and, generally speaking, is permitted as of right, i.e., without need for prior approval, in a C2 area. The Department of Buildings disapproved the application on August 16, 1985, noting, inter alia, the following objection: "Proposed retail store on same zoning lot with 'automotive service station' not permitted and contrary to Sec. 12-10 [Zoning Resolution]." ²

Section 12-10 of the New York City Zoning Resolution defines "automotive service station" as:

[A] building or other structure or a tract of land used exclusively for the storage and sale of gasoline or other motor fuels and for any uses accessory thereto.

The sale of lubricants, accessories, or supplies, the lubrication of motor vehicles, the minor adjustment or repair of motor vehicles with hand tools only, or the occasional washing of motor vehicles are permitted accessory uses.

A public parking lot or public parking garage is not a permitted accessory use. [Italics as in original]

Section 12-10 also defines "accessory use":

An accessory use:

(a) Is a use conducted on the same zoning lot as the principal use to which it is related (whether located within the same or an accessory building or other structure, or as an accessory use of land), except that, where specifically provided in the applicable district regulations, accessory offstreet parking or loading need not be located on the same zoning lot and

(b) is a use which is clearly incidental to and customarily found in connection with such principal use and

(c) is either in the same ownership as such principal use or is operated and maintained in the same zoning lot substantially for the benefit or convenience of the owners, occupants, employees, customers, or visitors of the principal use.

When "accessory" is used in the text, it shall have the same meaning as accessory use. [Italics as in original.]

Through their architect, Exxon and the owner appealed from the Department of Buildings' determination to the Board of Standards and Appeals, and requested the Board to issue an interpretation of the two subsections of section 12-10 of the Zoning Resolution which define "automotive service station" and "accessory use," respectively, so as to permit the operation of a convenience store at the subject property in conjunction with a self-service gas station. The architect argued that since the Zoning Resolution does not specifically prohibit such combined use, the Board should recognize a retail store as an accessory use to a gas station in a zone where retail stores are permitted. In partial support of his position, the architect relied upon a 1967 Department of Buildings' directive stating, in regard to gas stations, that "additional uses are permitted."

The architect also submitted written materials showing that the operation of a small convenience store in combination with the self-service sale of gasoline had become commonplace throughout the country over the last few years. At present, for instance, in excess of 70% of all sales of gasoline are conducted from self-service pumps, and some 55,000 gasoline stations, a number of which are located in the City of New York, are being operated in conjunction with a convenience store. The architect placed before the Board examples of some of the many instances in which it had expressly sanctioned such combined use for others, including Exxon's direct competitors.

By unanimous vote and without making any factual findings, the Board upheld the Department of Buildings' objection. In so doing, it adopted an interpretation of section 12-10 of the Zoning Resolution which limited permitted "accessory uses" to those contained in that section's definition of "automotive service station." Exxon then commenced this Article 78 proceeding. The court which heard the petition held, inter alia, that the Board had interpreted the Zoning Resolution too restrictively and arbitrarily, vacated its resolution and remanded the matter to the Board. ³ This appeal followed.

Zoning ordinances, which are in derogation of common law, must be strictly construed against the zoning authority. (Thomson Indus., Inc. v. Incorporated Vil. of Port Washington North, 27 N.Y.2d 537, 539, 313 N.Y.S.2d 117, 261 N.E.2d 260; Matter of 440 East 102nd St. Corp. v. Murdock, 285 N.Y. 298, 304, 34 N.E.2d 329.) In construing a zoning regulation, "the issue is not whether the use is permissible, but, rather, whether it is prohibited." (Matter of C. De Masco Scrap Iron & Metal Corp. v. Zirk, 62 A.D.2d 92, 98, 405 N.Y.S.2d 260, affd. 46 N.Y.2d 864, 414 N.Y.S.2d 516, 387 N.E.2d 227.)

In its resolution denying Exxon's appeal the Board declared that the definition of "automotive service station" contained in section 12-10 "sets forth a clear list"--in effect, an exclusive list--"of the uses permitted as accessory." ⁴ But the definition of an automotive service station as a building or tract of land used exclusively for the storage and sale of gasoline or other motor fuels "and for any uses accessory thereto" speaks, insofar as the expression "accessory uses" is concerned, not in terms of exclusion or limitation, but, rather, inclusion. The statute expressly permits "any" accessory uses. While section 12-10 enumerates certain permitted accessory uses, it does not, even implicitly, hold the specified uses out as exclusive. Nor does it indicate that these uses are necessarily characteristic of the only permitted types of use. Significantly, nowhere does it say that "accessory uses", in the context of an automotive service station, must relate directly to the care and maintenance of automobiles. "Had the [city] intended to impose such a condition ... it could easily have done so." (Matter of Allen v. Adami, 39 N.Y.2d 275, 277, 383 N.Y.S.2d 565, 347 N.E.2d 890.) Zoning regulatio may not be extended by implication. (Matter of Monument Garage Corp. v. Levy, 266 N.Y. 339, 194 N.E. 848.)

That the Zoning Resolution provides for the inclusion of "any" use accessory to the main use of selling gasoline is made clear in other ways. At the very beginning of section 12-10, the definitional portion of the Zoning Resolution, the following caveat appears: "Words in the text or tables of this resolution which are italicized shall be interpreted in accordance with the provisions set forth in this section." [Emphasis in the original]. As is set forth in section 12-10(c), "[t]he word 'shall' is always mandatory and not discretionary." Accordingly, whenever an italicized word appears in any part of the Zoning Resolution, that word must be interpreted in accordance with the definition thereof provided in section 12-10. The Zoning Resolution definition of an "automotive service station," as italicized, provides, in pertinent part: "used exclusively for the storage and sale of gasoline or other motor fuels and for any uses accessory thereto." Thus, the Zoning Resolution requires that "uses accessory," as set forth in the definition of an automotive service station, be, without exception, "interpreted in accordance with" the definition of accessory uses set forth in section 12-10.

In determining what are the "uses accessory" to an automotive service station, the Board was therefore required to refer to the definition of an accessory use. It refused to do so, however, insisting that it is "unnecessary to even address the issue of whether a retail store would fit within the general definition of 'accessory use' ", since it considers the list of permissible uses set forth in the definition of automotive service station to be exhaustive. If this were so, however, the words "uses accessory" in that definition would not have been italicized, thereby invoking the Zoning Resolution's definition of "accessory...